Thursday, 5 September 2019

The Wire on Gopal Sankaranaryanan's mistake

In my last post, I wrote about an article published in the Indian Express by a senior advocate which mis-stated the facts and threw doubt on the legality of an act of the Government.

What was the nature of the mis-statement? The advocate said that a clause in the constitution which had been amended, applied in its amended, not original, form to Jammu & Kashmir despite the fact that Constitutional amendments did not apply to that State.

Indian newspapers are required to observe the law as well as the code of conduct laid down by the Press Council of India- a statutory body which can admonish but not punish wrongful conduct. However, it is then open to the State to initiate  proceedings against criminal misconduct on the part of journalists and editors. Alternatively, a member of the public may petition the Bench to take action.

Editors are supposed to do reasonable fact checking before publishing a piece. In this case, the editor needed to check if the legal position was as the advocate suggested. This was not a trifling matter. If the advocate was correct, the Indian Government was acting illegally in exercising authority in Jammu & Kashmir. Clearly, this could cause both sedition as well as provide a justification for an invasion of sovereign Indian territory.  Thus, in addition to rebutting a false statement of fact, the Spokesperson of the Home Ministry directed the offending newspaper to take action against all concerned in spreading misinformation of a seditious nature. This was well within the law. It did not represent an attempt to muzzle the press or to create a 'chilling effect'. The law of the land punishes sedition as well as the spreading of misinformation which would have the effect of spreading sedition. Thus, if the Indian Express continues to publish articles spreading falsehoods about the legality of the Government of an integral part of the nation, it may well be prosecuted.

The Wire magazine, with typical perversity, finds something very sinister and objectionable in the Home Ministry's tweet-

Spokesperson, Ministry of Home Affairs

 The information given in this article is absolutely incorrect. The concerned newspaper has been directed to take action against all concerned for this blatant misinformation.
‘What more action beyond clarification?’
A senior journalist with the Indian Express who spoke to The Wire on background questioned the wisdom behind such a diktat. Noting that such directives have become the “new normal”, he said that when a newspaper has carried the government’s response to an opinion piece, what other “action” could it want.

The answer is that it wants the newspaper to act against those responsible for the publication of a false and potentially seditious article. The appropriate action may not necessarily be punitive. It may be educational in nature and involve introducing editors to the perhaps novel notion that they need to check the facts in what they publish..

The journalist said it is important to remember that the writer is “a senior advocate and one of the lawyers in the [Article 370] case”. He further said, “What action can a newspaper take against a senior advocate who has written a piece in a newspaper?”.
The newspaper needs to act against its editor or others involved in fact checking. It is not required to act against someone who is not an employee. However, it may exercise more caution in the future when it comes to choosing 'expert' commentators.
As for the MHA spokesperson’s language, the journalist said: “This is the language of everybody now, on every site. It is either abuse or shouting or screaming… They threaten ‘we will do this and that’. But journalists have to do their job,” he said.
This journalist, whose name is not disclosed, is clearly a cretin. The MHA has not shouted or screamed. It has not threatened to 'do this or that'. It has directed the newspaper to take a certain action. As to what the consequences of not taking that action are concerned, the newspaper can consult a lawyer or take guidance from the Press Council of India.

Incidentally, the journalist pointed out that Sankaranarayanan had not opposed the removal of the special status. He wrote:
“While the integration of the land and its people is necessary, it is cardinal that the world’s most resplendent democracy heed constitutional process, because without it, we are back in the dark days of the Emergency.”
What he wrote was wrong. Constitutional processes had been observed. To suggest that they had not and Indian authority was being exercised illegally in J&K was, prima facie, contrary to law and punishable as such.

“So to that extent,” the journalist said, “the advocate had taken the government’s side. But he also made a [legal] argument, and that can only be contested.”
It may make a legal argument that your head should be cut off if you don't give me your wallet. This legal argument can certainly be contested. But it is can also be the subject of a criminal prosecution.

Asked for his response to the MHA’s ‘direction’, Sankaranarayanan told The Wire: “I have no comment. I wrote an article and that is the end of the matter as far as I am concerned. People may have their views, it may be harsh, it may be gentle, whatever it may be, everybody is entitled to their own views and that is what free speech is about.”
The man wrote an article which contained an error of a type no lawyer should make. Unless there is evidence that he is a good lawyer, not a stupid cretin, he has committed no crime by displaying his ignorance and stupidity. However, the newspaper has violated Press Council guidelines re. fact checking. It may be liable for prosecution under laws relating to sedition.

‘Core question not answered’
For other lawyers, the MHA’s clarification is not the final word on the question. “The Centre’s interpretation is that the original provisional of 356(4) was in force,” said Rahul Kumar, an advocate who practices in the Supreme Court. “If that is so, what was the status of Jammu and Kashmir from December 19, 2018 – when the presidential proclamation bringing the state under Central rule was issued – to January 3, 2019, when the Rajya Sabha resolution ratifying it was passed?
It was under President's Rule. The ratification changed the date on which it would lapse unless re-issued.
'No state or Union Territory can be in a state where there is no government. There was, in fact, a government, there was, in fact, a presidential order and if they are saying it was effective only from January 3, 2019, then that 15-day period from December 18 to January 3 was in excess of the six months provided under the constitution.”
This is silly. What the Constitution says, with respect to J&K, is that at the moment of ratification, another six month period begins. For the rest of India, the Constitution was amended such that the clock did not go back on ratification. But J&K was 'special' and thus the original wording of the relevant clause in the Constitution applies.
“This has not been answered by the government,” said Kumar, criticising the MHA spokesperson for using language which is “clearly threatening and intimidating”.
Kumar is a cretin. The MHA answered this fully. Its job is to threaten and intimidate criminals so that they stop committing crimes. That is proper function of the Ministry.

The advocate added, “How can they suppress any opinion? Everyone in this country is entitled to their opinion. The opinion piece does not debate the dilution of Article 370. It did not incite anything against the government. Gopal simply pointed out a legal and constitutional lacuna. The matter can now only be settled by the Supreme Court, not the government.”
The MHA is not concerned with suppressing opinions. It is concerned with the maintenance of internal security. If the Indian Express, or the Wire, or Scroll, or any other publication insists on asserting, contrary to the facts, that the Government of India in Jammu and Kashmir is illegal and if this can pose a threat to internal security, then the MHA has a duty to take notice of this fact and issue proper directives. If these directives are flouted, a prosecution for sedition may be initiated.

Kumar added that this “coercive attitude” and “use of threatening words” cannot be accepted.
Why not? It is legal. Where is the evidence that this Kumar has not in fact accepted even more coercive attitudes and threatening words every day of his life? Had he not done so, he would be an even greater public nuisance.
“They are not trying to threaten or intimidate, they have threatened and intimidated. This can even be termed as contempt because Gopal is a petitioner before the court,” he said.
The fact that a person is a petitioner before the court does not license a third party to publish seditious or otherwise illegal material they have written. There can be no question of contempt of court for a directive issued by a competent authority to a party unconnected with a given judicial proceeding. Kumar is babbling nonsense.

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